Limitations of ICJ

Effectiveness of ICJ

Only states and not private claimants are eligible for appeal and arbitration by the ICJ; limited the scope and responsiveness of the ICJ

ü 1998: Court called for the US to postpone the execution of a Paraguayan citizen who had been sentenced to death in Virginia because the defendant’s government had not been consulted and thus the citizen denied the opportunity to provide legal counsel under terms of established international treaty law but US proceeded with the execution

ü 1999: Germany charged the US after the state of Arizona executed a German national who had not been given access to consular assistance

States are able to use ICJ to influence the state of disputes; if not directly at least indirectly—to help in negotiations

ü 1972: UK and West Germany brought suit against Iceland in 1972 primarily to communicate the seriousness of their determination to resolve their long standing dispute over Iceland’s unilateral extension of its fishing boundaries and the court rendered judgment favouring the applicants’ position but more importantly, effect of the litigation was to encourage subsequent negotiation among the parties

ü 1973: Pakistan found the Court helpful in breaking a stalemate with India in negotiation over the release of Pakistani prisoners of war taken during the hostilities in East Pakistan in 1971. The application was filed in May, negotiations were resumed in July, the case was withdrawn from the Court in December, and a final agreement for release of the prisoners was sign in April 1974

ICJ ability to resolve the cases is dependent on the parties involved to accept as it is non-binding

ü UN record of peaceful settlement is not strong: From 1945-1987, 137 disputes were referred to the UN for settlement but only 32 were successfully settled and 42 others had limited success

ICJ used to defuse tensions among states; as a neutral party

ü 1967-9: North Sea continental shelf cases pitting Denmark and the Netherlands against West Germany was submitted by agreement of all parties and the Court managed to break the deadlock over the division of the oil-rich shelf, even though more negotiation is necessary

ü 1973: Australia and New Zealand asked the Court to declare that French atmospheric nuclear testing in the South Pacific was illegal. That objective was largely achieved even though France never admitted the competence of the Court to hear the cause. France continued its testing during 1973 and again in 1995 before announcing its compliance with the Comprehensive Nuclear Test Ban Treaty of 1996

States have been known to prioritise their own interests above that of the UN, ICJ—bypass the ICJ whether it is to ensure that the decisions they want would be reached or to prevent time consuming ICJ from taking charge

ü 1986: US refusal to abide by the court’s ruling with reference to the Nicaragua incident in which the court agreed to entertained Nicaragua’s complaint of the US intervention in support of the Nicaraguan Contras

ü 1998: Court heard the complaint of the government of Libya over the incident of the aerial incident that caused the destruction of Pan Am flight 103 over Lockerbie, Scotland in December 1988. In the end, it was trial in the Netherlands by Scottish jurists and not in ICJ